Justice Amy Coney Barrett affirmed at her confirmation hearing that no one is above the law, but she was less forthcoming about the possibility of the President pardoning himself. Can it really be legal for him to do this? There are two sides.
If we interpret the Constitution according to the literal meaning of the text, which is called textualism, it would seem that the presidents do have this power. The Constitution specifies in Article II, section 2, that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There’s no mention of self-pardon to imply or suggest that a president can’t pardon himself.
Like her mentor, former Justice Antonin Scalia, and her colleague on the Court, Justice Neil Gorsuch, Barrett is a textualist/originalist. To see what this means for the interpretation of legislation, consider Gorsuch’s opinion in Bostock v. Clayton County. Gerald Bostock, employed by Clayton County in Georgia, received favorable performance ratings for years, but then was fired when his employer became aware of his interest in a gay football league. The issue was not constitutional, but statutory. Did firing Bostock because he’s gay violate Title VII of the Civil Rights Act of 1964? The act specifies, “It shall be an unlawful employment practice for an employer … to discriminate against any individual … because of such individual's race, color, religion, sex, or national origin.”
Gorsuch reasoned: "Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague." In short, the male employee in this example is discriminated against merely because of his sex, which the law forbids.
In 1964, only Illinois and Connecticut had decriminalized gay sex, which remained illegal in the other 48 states because most Americans at the time considered homosexuals mentally ill and possibly dangerous. It’s hardly likely, therefore, that Congress and the President intended Title VII to forbid employment discrimination against gay men. But legislative intentions are of no importance to textualists when interpreting legislation. The law as written carries the logical implication that Gorsuch uncovered. By the same textualist reasoning, the Constitution allows presidents to pardon themselves.
But textualist/originalists treat legislation and the Constitution differently. When it comes to the Constitution, textualists interpret the text according to the understanding of its words attributable to those who originally ratified the document. This is called “original understanding” or “originalism.,” and is why textualists are called originalists when it comes to the Constitution. It’s just as doubtful that ratifiers of the Constitution understood their words to allow presidents to pardon themselves as it is that Congress and the President intended Title VII to protect gays against employment discrimination. But textualists apply originalism only to the Constitution, not to legislation, such as Title VII.
Seeking the original understanding of the Constitution by those who ratified it, an originalist would note that the Constitution is designed to prevent the concentration of power in one person. The Federal Government shares power with the states and is divided among three branches that limit one another. Congress holds the purse strings, limiting presidential power. Judges interpret congressional legislation. Presidents appoint judges, but the Senate must approve them. Federal judges have complete job security except in the case of impeachment by the House and conviction by the Senate. In short, the Constitution deliberately disperses power. If presidents could pardon themselves, they could flout the law with no possible consequence except removal from office. Such concentration of power is just what those who ratified the Constitution were attempting to avoid.
In addition, those who ratified the Constitution were steeped in the English legal tradition, which includes the maxim that “no one is judge in his own cause.” Attributed to seventeenth century jurist Sir Edward Coke, this principle actually stems from the previous century. It can hardly be thought that the ratifiers understood the Constitution to violate this principle. But the principle would be violated if the President could pardon himself.
Finally, the principle which Justice Barrett acknowledged at her confirmation hearing was respected also by the ratifiers of the Constitution who were keen to avoid monarchy. No one is above the law. A president who could pardon himself would be above all federal law, as he could avoid punishment for any and all violations.
So, if the President were indicted for a federal crime and claimed immunity based on self-pardon, originalists such as Justices Gorsuch and Barrett would most likely allow the prosecution to proceed.
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